?Discuss the meaning of justice Essay

Critically analyse the extent to which the jurisprudence is successful in accomplishing justness, and discourse the troubles which is faces in seeking to make so. ( 30 Markss + 5 AO3 ) Justice is cardinal to our jurisprudence. Most would hold the jurisprudence should be merely, but justness is non easy to specify. The construct has been studied by many philosophers all of whom have their ain theories of what a merely society should be. Aristotle, a Grecian philosopher, was born 384 old ages before Christ ( BC ) . He separated justness into two parts – distributive justness and disciplinary justness. Distributive justness is concerned with the just distribution of society’s wealth. He went onto say that this wealth should be spread harmonizing to virtue and an individual’s parts into society. So this system relies on giving to those who have contributed in some manner instead than to those who are destitute. Aristotle said that distribution on the footing of people demands simply rewards the lazy and so would be unfair. Corrective justness he said, is needed to guarantee that persons can maintain their entitlements. He believed that if person is to steal from another the tribunal should guarantee that the wrongdoer does non derive and the victim does non lose out.

This thought can still be seen in countries of jurisprudence such as compensatory amendss for carelessness. Aristotle besides had other controversial positions. He believed that people where either suited by nature to be slaves or Masterss and this was seen by a affair of tantrum. He thought that kids who were born into households of slaves were suited to transport out that function. Aristotle besides believed that adult females where inferior to work forces as they are ‘colder’ and miss the ability to bring forth seeds and so he viewed them as ‘infertile men’ . He went onto say that adult females belong in the place and should be ruled by work forces who were superior. Our jurisprudence today prohibits favoritism on evidences of sex so these thoughts are no longer acceptable to us. Thomas Aquinas, born in 1225, was a theologist who besides believed in distributive justness, but said that our society’s wealth should non be distributed merely by virtue, but besides by rank and demand – he stressed our moral duty to look after the hapless.

Karl Marx, born in 1818, is widely regarded as the laminitis of communism. Marx developed a really different theoretical account of distributive justness which can be understood from his words ‘from each harmonizing to his ability, to each harmonizing to his need’ . This requires that each should maximize their part to society by exerting full usage of their abilities and secondly, each should have in conformity with demand, irrespective of what they have contributed. But if people are automatically given what they need, will they be motivated to work hard? Not merely this, but how do we accurately find what person needs? Bentham, widely known for his development of the useful attack to justness, said that maximizing felicity is the object of justness. Utilitarianism is based on the philosophy that all actions should be judged in footings of their public-service corporation in advancing the greatest felicity for the largest figure of people. John Stuart Mill, a nineteenth century broad supported Bentham in his work of utilitarianism. He said that actions are right ‘in proportion as they tend to advance felicity, incorrect as they tend to bring forth the contrary of happiness’ .

But unlike Bentham, Mill concentrated on the quality of felicity instead than simply the measure of people who are happy. He besides went onto say that justness ‘includes respect for people, for belongings and for rights, every bit good as the demand for good religion and impartiality’ . But the construct of utilitarianism can be to a great extent criticised. The greater good will non profit the minority groups and ignores the feelings of persons, as fulfilling those demands may give felicity for the greater good. Under utilitarianism, tormenting one individual, even if it turns out that the individual is non to fault, as an effort to salvage the lives of others is considered to be merely which some would see morally incorrect. So the disbursal of one guiltless individual or a minority group would warrant the felicity of a greater figure. John Rawls ( 1921-2002 ) was a professor of political doctrine at Harvard and set out in his book ‘Theory of Justice’ the construct of societal justness. Rawls said that a merely society is one in which rational people would take to populate if covered by a ‘veil of ignorance’ .

This meant without any prejudice towards their ain state of affairs i.e. their wealth, age, societal category, gender, wellness intelligence and every facet of their life. He said there are two basic rules of justness that would be chosen under these fortunes. First, the rule of autonomy, i.e. the maximal possible autonomy for all. And secondly the rule of difference which says that goods should be distributed every bit except where unequal distribution benefits those who are least advantaged. He besides said they would take equality of chances for societal promotion which differs from Aristotle’s thought of people being born into or fitted to certain functions. Robert Nozick was a Harvard co-worker of Rawls and developed an entitlement theory of justness which had three elements. 1 ) A rule of justness in acquisition, covering with how belongings is ab initio acquired. 2 ) A rule of justness in transportation, covering with how a belongings can alter custodies. 3 ) A rule of rectification of unfairness, covering with unfairnesss originating from the acquisition or transportation of belongings under so two rules above.

This 3rd rule, he said, would non be required if the universe was wholly merely. He said that where a individual additions belongings in conformity with the rules of acquisition and transportation, they are hence entitled to maintain the belongings. But where people gain belongings due to incorrect making i.e. fraud or larceny the 3rd rule provides a redress. Nozick’s thoughts are consistent with right flying conservativism, but are diametrically opposed to the thoughts of Marx. The term jurisprudence can be defined as ‘the rules and ordinances established in a community by some authorization and applicable to its people, whether in the signifier of statute law or of usage of the constabulary, recognized and enforced by judicial decision’ . Justice on the other manus is non as easy to specify as we have discovered people have really different positions of what a merely society is, but I think we would all hold that the jurisprudence should try to accomplish justness as best it can. This position was expressed strongly by Lord Denning who said that jurisprudence should ever endeavor to accomplish justness. He said that ‘the proper function of the justice is to make justness between the parties before him. If there is any regulation of jurisprudence which impairs the making of justness, so it is the state of the justice to make all he lawfully can to avoid the regulation or even change it so as to make justice’ .

But others positions are somewhat more restrictive. For illustration Sir Robert Megarry had said that it is the judge’s function to administrate justness ‘according to the law’ . But we have seen this will non ever give a merely consequence. Emily Andrews had told the constabulary that she was repeatedly raped by her hubby, but subsequently withdrew the accusal because of great household force per unit area. She was so jailed for 8 months for corrupting the class of justness and her guilty hubby was able to walk free. After passing 18 yearss in prison her prison sentence was eventually overturned by Lord Judge. She is now fighting to derive detention of her four immature kids. Lord Judge said ‘this is an exceeding instance and we hope that it will be really exceeding for instances of this sort to be prosecuted to strong belief in the Crown Courts’ . So it seems as if Lord Judge was stating she should non hold been prosecuted, but it would hold been a really bold individual to non hold imposed charges because the jurisprudence is really clear. So this illustration clearly shows that justness can non ever be achieved by following the jurisprudence. Justice is frequently sub divided into procedural and substantial justness.

Procedural justness refers to the thought of equity in the procedures of legal proceedings, whereas substantial justness is justness in the content of the jurisprudence. One facet of procedural justness is natural justness which has two basic rules. The first is the regulations against prejudice ( nemo iudex in causa sua ) . In the instance of Rv Bingham Exparte Jowitt the suspect was on test for a speeding offense, and his grounds was contradictory with that of the constabulary officer’s. The magistrate said ‘my rule in such instances has ever been to believe the grounds of the constabulary officer’ . This shows prejudice, and so it was non considered to be a just test – Judgess must be impartial. It was said by Lord Denning in Metropolitan Properties Ltd V Lannon that ‘justice must be rooted in assurance, and assurance is destroyed when right-minded people go off thought: the justice was biased’ . It besides means that where a determination shaper i.e. a justice has a connexion with a party or a informant they should stand down. In Re Pinochet Lord Hoffman should hold done merely that. Amnesty international gave grounds against Pinochet.

Lord Hoffman was a non-executive direct of Amnesty so he had an undeclared nexus to the instance. There had to be a 2nd relistening so justness was seen to be done. The 2nd basic rule of natural jurisprudence is the right to a just hearing – the right to be heard ( audi alteram partem ) . Both parties’ instances must ever be put frontward. This is illustrated in the instance Re A where it involved a determination whether conjoint twins should be separated which would stop the life of the weaker twin. Although the twins could non talk for themselves, both were represented at the test. It besides includes that a individual should be given equal anterior notice of charges or allegations and a sensible chance to set together his or her instance. In R V Thames Magistrates’ Court ex parte Polemis a sea captain was non given equal clip to fix his grounds for the instance. He received his biddings at 10.30am and the test was heard that twenty-four hours at 4pm. Another trouble in accomplishing justness is money.

Although the legal assistance budget is ?2 billion, legal assistance was already really restrictive in civil instances. It is non available for personal hurt instances so they normally run on a no win – no fee footing which means that canvassers will merely accept instances that they think are really likely to win. This means that a batch of personal hurt instances will travel unheard because of missing representation. Not merely this, but the current legal assistance measure makes really terrible cuts to legal assistance. ?350 million will be cut from household and civil instances which will impact on the poorest in our society like those who are on benefits. Besides legal assistance will no longer be available for debt advice, profit advice or lodging. This means that more people will be forced to stand for themselves at test which will do tests much longer and less efficient hence finally more expensive. It has besides been proposed that legal assistance is removed from medical carelessness. This means that once more, people will hold to trust on a no win – no fee footing. So a batch of instances won’t reach tribunal as canvassers will merely take on instances that have a really high opportunity of winning.

As a consequence of this, severely injured people will stay unsalaried. It is besides of import that regulations of grounds are purely followed to guarantee that justness is served. After there has been a offense, particularly if it is a high profile instance, there is frequently a batch of force per unit area on the constabulary to procure a strong belief. This force per unit area may sometimes take to improper behavior in the manner grounds is obtained. An illustration of this can be seen from the instance of Paul Blackburn who was charged with the attempted slaying and sexual assault of a nine twelvemonth old male child at the age of 15. Paul Blackburn served his 25 twelvemonth sentence and non until 2 old ages after he was released was it found that he was really wrongfully convicted. The full instance against Blackburn rested on a confession he had handwritten, after more than four hours of intense question. He eventually gave into the two investigators and wrote a statement which was, he says, efficaciously dictated to him by the investigators. He said ‘they even helped me spell the words I didn’t know.

My authorship was rather basic at the time’ . At the entreaty in 2005 the three entreaty Judgess heard expert testimony which questioned how a 15 twelvemonth old, hapless educated male child could hold written a papers which was punctuated and included proficient footings, all of which spelt right. So it wasn’t until the 25th of May 2005, 28 old ages after the strong belief that Paul Blackburn was eventually acquitted. Some may reason that now Blackburn has been found to be non guilty at entreaty, justness has eventually been served. But 25 old ages of imprisonment down the line, non to advert the existent felon walking free, can we truly state justness has been served? Paul Blackburn is now described as ‘an emotionally shattered man’ . Another trouble in accomplishing justness is undependable adept grounds. When person is up at the base and introduces themselves as for illustration Professor Sir Roy Meadows a member of the general medical council the jury are likely to believe what they say. So in some manner it must be checked upon that this grounds is dependable before it sways the determination of a jury in a serious condemnable test.

An illustration of how undependable adept grounds can impact a test can be seen from the instance of Sally Clark. Sally Clark was convicted for the slaying of her two boies in 1999 and sentenced to life imprisonment even though she insisted it was caused by cot decease. After passing more than 3 old ages in prison she was released in January 2003 after adept grounds given at the test by Professor Sir Roy Meadow, a paediatrician, was discredited. During the test he had said that the opportunity of holding two cot-deaths in one household was 1 in 73 million, which doubtless and intelligibly take the jury to convict. This grounds given by Sir Roy Meadow besides lead to the strong belief of Angela Canning who was sentenced to life imprisonment in April 2002 for the slaying of her two kids which she insisted was caused by cot decease. He had said that one fingerstall decease in a household was unfortunate, two was leery and three was slaying. After 20 months in prison Canning was released in December 2003. Her instance was re-opened after an probe found three old fingerstalls deceases in the household, proposing a familial cause.

After probe it was really found that Sir Roy Meadow’s grounds had no statistical footing and ‘grossly misinterpreted the opportunity of two sudden deceases with in a family’ so Sally Clark and Angela Canning’s strong beliefs were overturned. These two instances show the power and the effects of adept grounds given at a test. I think that it is of import for future instances that expert grounds is checked upon for its dependability to forestall more hideous abortions of justness like the instances of Angela Canning and Sally Clark. And in fact the Law Commission want to make merely that. Their study in 2009: ‘The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales’ said that adept evidence’s dependability should be assessed by the test Judgess, their recent study published in 2011: ‘Expert Evidence in Criminal Proceedings’ makes recommendations to the original in visible radiation of the remarks they have received. The study proposes that there should be particular statutory admissibility trial for adept sentiment grounds.

However the tribunals will merely use the trial if it appears that the grounds might be insufficiently dependable to be admitted. They besides said that there should be a individual list of standards to assist the test Judgess apply the trial. And eventually that the party seeking to trust on the adept grounds should bear the load of cogent evidence in showing its dependability, even if that party is the accused. These proposals where agreed in February 2011 and I think would guarantee a much fairer jurisprudence on the admissibility of adept grounds and will assist us to accomplish justness in future condemnable instances. Corrective justness is an facet of procedural justness which involves rectifying errors. One manner in which errors can be rectified in our jurisprudence can be seen from our entreaty system. Originally in our entreaty system, a retrial was non permitted if the suspect was acquitted but the entreaty system has now broadened and gives the prosecution a right of entreaty against an acquittal if there is ‘new and compelling evidence’ : Criminal Justice Act 2003 ( portion 10 ) .

For illustration in Rv Dunlop the suspect confessed to a constabulary officer that he had murdered Julie Hogg in 1991 but as he had already been acquitted in 1989 so no farther action could be taken. This meant that in 2006 Dunlop was retried and was convicted of slaying. Another manner in which our jurisprudence seeks to ‘correct’ justness can be seen from the Criminal Cases Review Commission ( CCRC ) which was set up in March 1997 by the Criminal Appeal Act 1995. It is an independent and impartial organic structure that reviews the strong beliefs of people who have been found, they think, wrongfully convicted or harshly sentenced and refers the appropriate instances to the entreaty tribunals. The CCRC have had over 1,300 applications, 320 of which have been re-heard and the strong beliefs quashed.

An illustration of such is Rv Andrew Adams. The suspect was convicted of slaying and sentenced to life imprisonment on the 18th of May 1993. The suspects entreaty was dismissed by the Court of Appeal Criminal Division in January 1998. The CCRC referred the instance to the tribunals in 2005 on the footing that there was unqualified defense mechanism representation, material non-disclosure by the prosecution, mistakes in the summing-up and that the jury had received inadmissible grounds refering the appellant’s bad character. An entreaty was granted and at the test, eventually, after passing 14 old ages in prison, on the 12th of January 2007 the defendant’s strong belief of slaying was quashed. It could reason that because Andrews was convicted of slaying and exhausted 14 old ages in prison, justness was non to the full achieved for him. But at least because of the CCRC he is now a free and proved to be guiltless adult male. I do believe that the CCRC do good to assist us accomplish justness in our society, but there are assorted sentiments about the organic structure. It has been found that every twelvemonth the CCRC reject 97 % of applications from persons who claim they have been wrongfully convicted.

Professor Michael Zander a member of the Runciman Royal Commission which recommended the scene of the organic structure after instances the Birmingham Six, Guilford 4 and Maguire Seven, all of whom were wrongfully convicted. Zander believes that the CCRC demand to utilize a small known power to mention instances to the tribunal of entreaty even when no new grounds has been uncovered, if there is serious uncertainty about the strong belief. ‘They could utilize this power more’ says Zander. He besides went onto say that ‘innocent people are in the greatest troubles one time they have been convicted. It is non ever the instance that something new can be found, even with the best will in the universe and all the probes that can be mustered’ . He has besides criticised the organic structure for its overreliance on paper analysis of grounds and for non really sing the persons in prison which is something that the Royal Commission had recommended. Besides the organic structure will merely mention instances where they think there is a ‘real possibility’ that the strong belief will be overturned on referral to the tribunal of entreaty.

But many have said that this is excessively restrictively interpreted by the CCRC. 45 instances listed by candidates as holding ‘plausible claims’ of artlessness have been turned down by the organic structure. So although the CCRC have been successful in turn overing the strong beliefs of some guiltless people, there is still a long manner to travel. Merely 3 % of applications to the organic structure are referred to the appeal tribunal. So although the organic structure is wining to assist a little figure of people who have been wrongfully convicted, which of class should be commended, there may still be a big of figure of those who are non guilty whose instances are bit referred. Substantial justness is justness in the content of the jurisprudence. Does the manner we set out our jurisprudence achieve justness as best it can? The jurisprudence of slaying is on a regular basis criticised for being unfair as you can be guilty of slaying with meaning to kill or surprisingly, meaning to do serious injury, without cognizing any hazard of decease ( Vickers ) , both of class having the compulsory life sentence. It seems unfair and highly unjust, that a adult male who merely intends serious injury and a adult male who sets out to kill are put in the same class of offense and both receive the same compulsory life sentence.

In 2006 the Law Commission proposed that slaying should be sub-divided into two classs. The first would be called ‘first grade murder’ and would cover suspects who intended to kill. And the 2nd class would be called ‘second grade murder’ which would cover suspects who intended serious injury but were non cognizant at that place was a hazard of decease. By dividing the offense, merely suspects convicted of first degree slaying would have the compulsory life sentence and 2nd grade slaying would let the justice discretion in condemning. I think these proposals guarantee a fairer jurisprudence on slaying and would assist justness to be achieved. To reason, I don’t think that anyone could state candidly, that we have a legal system that ensures that justness is ever achieved, nevertheless much we aim to advance it. But I don’t really believe that a jurisprudence can of all time be drafted that ensures justness for every person.

Even now, when wrongfully convicted people like the Birmingham Six, Paul Blackburn, Sally Clark and Angela Canning walk free, their lives are changed everlastingly ever hindered by the effects of a convicted of slaying, justness doesn’t rather seem to be the word. It may be possible that person is able to make a legal system that they believe will ever accomplish justness, but as we have seen people have really different thoughts of a merely society, so it is impossible that everybody’s demands are met. For our legal system to accomplish justness, all members of that system have to be just, impartial and free from corruptness, which we have seen is non ever the instance. The investigators who questioned Paul Blackburn, so a 15-year-old male child for over 4 hours and forced a strong belief out of him, ordering the words for him to compose in his statement were most decidedly non just.

How can we guarantee that every individual individual who in some manner affects the class of justness is impartial, indifferent and honest? How can we guarantee that a justice, an influential and of import portion of any test is just and non-discriminatory? Former Law Lord Tom Bingham said that perfect justness is an unachievable ideal. He said ‘a clip is improbable to come when anyone will of all time be able to state that perfect equity has been achieved one time and for all, and in retrospect most legal systems runing today will be judged to be defect non yet recognized’ . Unfortunately I think that these realistic words run true and although we can make everything possible to endeavor to accomplish a merely society, it will merely of all time be an unachievable ideal.